Phil Luciano: Loophole in DUI law is the problem

Thursday

Jan 29, 2009 at 12:01 AMJan 29, 2009 at 10:55 PM

I have heard great cries of injustice regarding the Pekin cop who got out of a DUI. Certainly, we want no favoritism shown to the men in blue. Yet, if we look closely at the case, maybe we should bemoan not the lack of prosecution but a loophole in DUI laws.

Phil Luciano

I have heard great cries of injustice regarding the Pekin cop who got out of a DUI.

Certainly, we want no favoritism shown to the men in blue. Yet, if we look closely at the case, maybe we should bemoan not the lack of prosecution but a loophole in DUI laws.

Six-year officer Andrew J. Thompson, 29, of Pekin was off duty Dec. 19. He was behind the wheel of his own car as he left a Pekin bar-eatery with friends. A car behind him slid on ice and read-ended Thompson's car.

Pekin police arrived and smelled alcohol on the breath of Thompson, who admitted having had alcohol with dinner. Citing a possible conflict of interest in investigating one of their own, police called in Illinois State Police.

A trooper asked Thompson to take field sobriety tests and a Breathalyzer. Thompson refused and was arrested and charged with DUI. He was taken to the Tazewell County Jail, where he posted $1,000 bond.

Beyond the DUI, Thompson faced a possible six-month suspension for refusing the tests. According to state law, motorists on Illinois roadways must submit to tests as requested by police, including breath, blood and/or urine.

Recently, Tazewell County State's Attorney Stewart Umholtz decided not to prosecute. He said none of the evidence - including witness statements and the trooper's in-car video camera - showed any impairment by Thompson. Of course, because he had submitted to no tests, authorities had no hard evidence of intoxication, either.

Umholtz doesn't blanch at public allegations of favoritism toward a cop. He says he just couldn't make the case without evidence of impairment.

"If I had chosen to prosecute this police officer, it would have been fair criticism to say that I was going after him because he is a police officer," he says. "I have chosen to honor my oath even in situations that may be unpopular."

He also decided to let the potential six-month suspension go away. By law, that suspension can only occur after a series of events are put in motion. The responding officer would have to write out reports, including a sworn statement about a Breathalyzer refusal. A prosecutor would have to send those documents to the Secretary of State's Office to show a driver had refused testing. Then the state would have the authority to suspend a license.

But Umholtz declined. He says that's not unusual: If a DUI isn't prosecuted, he doesn't pursue the suspension.

I can partly understand the logic there. If there is no evidence of a wrongdoing criminally, should a motorist lose his driving privileges?

Then again, it's not as if police suspected Thompson on a whim. He smelled like alcohol and he admitted to having been drinking.

That's not necessarily against the law. You can drink and drive, you just can't drink and drive drunk. That's why there's a blood-alcohol threshold, of 0.08 percent.

So why not use that threshold more vigorously. If a motorist refuses to take a breath, blood or urine test - again, as already required by law - a six-month suspension should be mandatory.

I don't make such suggestions lightly. I think police should have probable cause to investigate crimes and make arrests. That's why I've always been against such drastic measures as roadside safety checks, which allow police intrusion even without any constitutional reason to stop drivers.

But in cases like Thompson's, he smelled like liquor and admitted drinking. The trooper had every right to demand a breath test.

Maybe Thompson was sober. But he took the risk in having drinks and getting behind the wheel. If you get in a wreck and smell like booze, police will suspect wrongdoing. If you've had just a beer, then you can take a Breathalyzer and remove all doubt. If you've had one too many, then you get a DUI.

Umholtz was right in pointing out to me that DUIs can be prosecuted absent a Breathalyzer, such as officer testimony of a motorist's erratic driving, slurred speech and other manifestations of intoxication. Still, the law allows much too much leniency here. As it is, a motorist would be crazy to take a field sobriety test or a Breathalyzer - or even communicate with police in any way.

Umholtz just followed the law. But the law is weak. If you don't want to take a Breathalyzer if police suspect drunkenness, then you should automatically lose your license. No paperwork, no evidence, no leeway. It's gone.

Phil Luciano can be reached at pluciano@pjstar.com or (309) 686-3155.

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